Siman 243

Know, that aside from the thirty-nine complete melakhot, there are also many shevutim that are forbidden on Shabbat, and they supported them with verses, as it is found in the Mekhilta, Parashat Mishpatim, on the verse "And in all that I have said to you, you shall take heed" (Exodus 23:13): "Why is this stated? Since it says: 'You shall not do any melakha'; I only have those things that are in the category of melakha. From where do we derive things that are in the category of shevut? The Torah states: 'And in all that I have said to you, you shall take heed.'" Thus far their words. And in Parashat Ki Tisa it is found in the Mekhilta: "'But My Shabbats you shall keep' (Exodus 31:13), why is this stated? Since it says: 'You shall not do any melakha'; I only have those things that are in the category of melakha. From where do we derive those in the category of shevut? The Torah states: 'My Shabbats', to include things that are in the category of shevut," thus far the wording of the Mekhilta. And it appears to me that both are necessary, for in the shevutim of Shabbat there are two types: the first, that which is forbidden for him to do himself; and the second, that just as it is forbidden to do it himself, so too it is forbidden for him to tell a non-Jew to do it. (And behold, the Semag in the laws of Yom Tov brought the Mekhilta of Parashat Bo on the verse "No melakha shall be done in them," you shall not do it, nor your friend, nor a non-Jew, see there. And the Taz brought it at the end of this siman, and the Beit Yosef in siman 244. However, the version of the Gra is the opposite, and he reads: "but it may be done" etc., see there. And regarding the version of the Semag I am astonished, for later there Rabbi Yonatan says: It is not necessary etc., for is this not an argument a fortiori: if regarding the stringent Shabbat—one is not warned regarding the melakha of a non-Jew, regarding the lenient Yom Tov etc., thus far his words. Behold, it is explicitly explained according to the version of the Gra).

And so the Rambam wrote at the beginning of chapter 21, and this is his wording: "It is stated in the Torah 'you shall rest': even from matters that are not melakhah, one is obligated to rest from them. And there are many matters that the sages prohibited as a shevut," thus far his words. And behold, we find that the prophets mentioned the shevutim. Isaiah said (Isaiah 58:13), "If you restrain your foot because of the Sabbath, from performing your affairs on My holy day, and you honor it by not doing your wonted ways, from pursuing your affairs and speaking words"; and Nehemiah son of Hachaliah (Nehemiah 13:13) cried out over the fact that the Tyrians were bringing fish and selling them on the Sabbath to Israel, and it is written: "Then I contended with the nobles of Judah, and said to them: What is this evil thing that you do, and profane the Sabbath day," behold, that buying something on the Sabbath he calls profanation of the Sabbath.

And so wrote the Ritva in the name of the Ramban, that it is a tradition in our hands that the shvut prohibitions of Shabbat are not like other rabbinic prohibitions, but rather they are like Torah prohibitions. And the proof for this is that if it were not so, but we were to say that from the Torah only actual melakha is forbidden, but commerce is permitted, would this be called a day of rest and cessation, that everyone should engage in his trade and sit in the shop and buy and sell? This is nothing but astonishing! Rather, the essence of the matter is that for actual melakha—the Torah obligated stoning, and for the shvut prohibitions—it did not obligate stoning, but their prohibition is a complete prohibition like a Torah prohibition.

And behold, regarding the prohibitions of Shabbat, there is "telling a non-Jew - a shevut," which means that any melakhah that is forbidden for us to do, it is forbidden for us to tell a non-Jew to do for us, whether we tell him on Shabbat, or whether we tell him before Shabbat to do it on Shabbat, or whether we tell him on Shabbat to do it after Shabbat, as the Rambam wrote at the beginning of chapter 6. And he wrote that even though he does not need the melakhah on Shabbat, and the reason is so that Shabbat will not be light in their eyes and they will come to do it themselves, see there. But Rashi, of blessed memory, in the first chapter of Avodah Zarah (15a, in the heading beginning "Since," see there) wrote, and this is his wording: "And that which is forbidden for an Israelite to tell a non-Jew 'do such for me,' this is because of 'pursuing your affairs and speaking of them' — speech is forbidden," thus far his words. And at the end of the first chapter there, he explained another reason, because it appears like his agent, see there. And both reasons are necessary: for from the reason of "and speaking of them," the prohibition is only when he tells him on Shabbat itself, but if he tells him before Shabbat – this does not apply, and in that case the prohibition is because of agency. And even though there is no agency for a non-Jew, nevertheless, for stringency there is agency (Bava Metzia 71b).

The Rambam wrote in chapter 6, law 8: "An Israelite who told a non-Jew to perform this labor for him on Shabbat, even though he has transgressed and they lash him with lashes of rebellion—he is permitted to benefit from that labor in the evening, after he waits the time it takes to be performed. And they only forbade in every instance that he wait the time it takes to be performed because of this matter: for if you say it shall be permitted immediately, he might tell him to perform it, and find the matter ready immediately. But since they forbade it for the time it takes to be performed, behold, he has gained nothing." Thus far his words. And even if the non-Jew performed a labor forbidden by the Torah on his own for the sake of the Israelite, and the Israelite did not request him at all to perform it—nevertheless, it is forbidden on that same day, and in the evening he must wait the time it takes to be performed, as several details of the laws regarding this will be explained in siman 325. (And Shabbat wages they forbade entirely, as will be explained in section 16).

And if the Israelite is obligated to protest against him when he sees that he is performing melacha for him and he is doing so in a concealed place, for if it were in public—it is obvious that he is obligated to protest against him even in a place where it is permitted according to the essential law, as will be explained in this siman. Rather, even when he does so in a concealed place, such as in his own house and the like—it is stated in the Yerushalmi (Chapter 1, Halacha 9), and this is its wording: "If one gave his garments to a non-Jewish launderer, and came and found him working on them on Shabbat—it is forbidden. Rabbi Yudan said: And let him tell him not to work; this applies regarding an act of favor. But regarding a hired worker [who contracted for a fixed fee]—he is occupied with his own work," thus far its words. It is clear from this Yerushalmi that whenever he performs it only as a favor for the Israelite—he is obligated to protest against him, but when he performs it for his wage—he is not obligated to protest against him, and so wrote the Hagahot Mordechai in the first chapter of Shabbat. And the details of these laws will be explained with the help of Heaven in siman 252, see there. (And that which we learned on page 121a, that one does not need to protest against him when he comes to extinguish a fire—this is because he knows that he will compensate him with a good wage, and he acts for his own sake. Furthermore, regarding a fire they were lenient, as will be explained in siman 334).

Our teacher, the Beit Yosef, wrote in section 1: "A person may not rent out his bathhouse to a non-Jew, because it is called by the name of the Israelite, and he performs labor in it on Shabbat. For an ordinary bathhouse is not made for sharecropping, and they will say that all the profit belongs to the Israelite, and that he hired the non-Jew for such-and-such per day, and it turns out that he performs labor as an agent of the Israelite. But a field is permitted, for it is the way to take a field for sharecropping. And even though they know that it belongs to an Israelite, they say that he took it for sharecropping and he is working for himself. And an oven—its law is like a bathhouse, and a mill—its law is like a field," thus far his words. Our teacher, the Rema, added to say, that even though the non-Jew took it only for a third or a fourth, and the Israelite has benefit from what he works on Shabbat—nevertheless it is permitted, for he acts for his own sake, thus far his words.

The explanation of the matters is that, behold, according to the essential law, if the non-Jew rents the object from the Israelite for a year or two and pays the Israelite a fixed amount each and every year, and the entire business is his—it is permitted for him to work on Shabbat, for behold, he is working for himself. For to the Israelite there is no difference whether he works on Shabbat or does not work. Not only that, but even if he takes it from the Israelite as an arisut for a half, a third, or a quarter, in the manner that fields are taken in arisut. For even though the Israelite's portion also increases by what he does on Shabbat—nevertheless it is permitted, for behold, he is working for his own sake and not for the sake of the Israelite. And that which the Israelite's portion increases through this—we have no concern with it, for it is a benefit that comes of itself, and this is nothing more than a mere grama, as the non-Jew causes the Israelite to profit. And behold, even regarding a complete melakhah they said in Shabbat (120b): "'You shall not do any melakhah,' doing is what is forbidden, but a grama is permitted," see there, and all the more so in a case such as this. And according to this, there is no prohibition if the non-Jew rents from the Israelite the bathhouse or the field or the oven or the mill, and whatever profit they produce he takes for himself, and pays the Israelite a fixed amount, or takes a portion of a half or a third or a quarter.

But if all the profit belongs to the Israelite, and he pays the non-Jew for his labor such-and-such per day or per week or per year—it is prohibited by law. And even though in this case as well the non-Jew acts for his own sake in order to receive his wages, and he acts with his own interest in mind—nevertheless, he performs the primary business for the Israelite, since he himself receives nothing from the profit, only a fixed wage, and if so, the non-Jew is the agent of the Jew to perform the business for him, and he pays him for his agency. And since a person's agent is like himself—it is as if the Jew performs it himself on Shabbat. This is not the case when the non-Jew has a portion in the actual profit of the business—he is not like his agent, but rather performs the primary business for himself, and benefit reaches the Israelite automatically (and that which is written in the Shulchan Aruch: "and he hired the non-Jew for such-and-such per day," the same law applies per year).

Nevertheless, the Sages, of blessed memory, said (at the end of the first chapter of Avodah Zarah) that regarding a bathhouse, it is forbidden to lease it even under an arisut arrangement, but regarding a field, it is permitted. The reason is that it is common for a field to be given in arisut and there is no suspicion, but a bathhouse is not commonly given in arisut because its income is completely hidden; for the income from a bathhouse is that whoever enters the bathhouse to wash pays such and such, and the income is small, and who knows how many will wash? Therefore, it is common for the income to belong to the owner, and he hires someone who sits and receives the payment, hiring him by the year, or by the month, or for each and every day. Therefore, even if he has now leased it from him in arisut, nevertheless, people will suspect him that all the profit is his, but regarding a field, they will not suspect him. And the poskim said that a mill has the law of a field, because it is common to lease a mill in arisut. And an oven—meaning that whoever bakes in the oven pays such and such—its law is like a bathhouse, because it is not common to lease it in arisut. (And because the Shabbat prohibitions of the Sages are very stringent, similar to those of the Torah as we have written, the Sages therefore decreed even regarding the suspicion thereof. And it is necessary to fence this in, for if not so, they will breach breach upon breach, as these are matters of public display.)

One of our teachers wrote (the Ran at the end of the first chapter there): And from this we learn, that since the akkum has a portion in the fruits of the field, even though the Israelite benefits – it is permitted, for he acts for his own sake, and the benefit to the Israelite comes automatically. And it is not similar to an Israelite and an akkum who are partners mentioned below in siman 245 where it is forbidden, for there the labor of the field is also incumbent upon the Israelite, but here it is entirely incumbent upon the akkum and not upon the Israelite at all. And all the more so is it permitted to lease his field to an akkum who rents it for a fixed sum, for in such a case when he acts – he acts for his own sake, and the Israelite does not benefit at all, etc. And regarding kablanut, such as where the akkum took upon himself to do all the work of the field for the Israelite for a known thing, whether it is permitted for the Israelite to allow him to do work on Shabbats and Yom Tov: there is one who says it is permitted, for since we say regarding arisut that it is permitted – in kablanut it is also permitted, for the Israelite does not benefit from the work of Shabbat at all (for if he does not do it on Shabbat, he will do it on a weekday). But there is one who says that kablanut in such a case is forbidden, for it is not similar to an aris. For an aris, since he takes a portion of the fruits – people do not say he is a day laborer, but in such a case where the owners take all the fruits – it appears to people like a day laborer, etc. And so wrote the Rambam, of blessed memory, in chapter 6, etc. Thus far his words. For those who forbid compare this to kablanut of building a house – which is forbidden according to most poskim as will be explained in siman 244. And those who permit hold that it is not similar to a house, for it is common to build them with day laborers, which is not the case with fields (and the Shulchan Aruch there ruled anonymously for prohibition).

And even according to the opinion of those who permit—this is only regarding a field, because there is no practical difference to the Israelite in what he does on Shabbat, since he must perform all the labor of his field, and if he does not do it on Shabbat, he will do it on a weekday, and the Israelite derives no benefit from this. But regarding a bathhouse, a mill, and an oven—all agree that it is forbidden through kablanut, for in these cases, the entire benefit to the Israelite is in what is done on Shabbat, as the labor is not like that of a field; rather, whenever people come to wash, to grind, or to bake, he must occupy himself with it, and the wage of the non-Jew is the same whether it be much or little. If so, that which he does on Shabbat—the primary benefit is only for the Israelite. And thus the great later authorities (Magen Avraham and Turei Zahav subsection 2) agreed, and even regarding a field they agreed to the prohibition. Therefore, one must be careful in every business that one hands over to a non-Jew, that the non-Jew should have a portion in the body of the profit of the business, such as when he sells—he should have from every measure such and such, or from every loaf, and so too anything similar to this.

Our teacher, the Beit Yosef, wrote in section 2: "Even a bathhouse or an oven, if he rented them out year after year and the matter became publicized through this, such that it is not his way to hire workers but rather to rent them out, and likewise if the custom of most of the people of that place is to rent them out or to give them over in sharecropping—it is permitted to rent them out or to give them to him in sharecropping." Thus far his words. And one of these is sufficient, as is explained from the words of the Tur who wrote in the name of the Gaon, that if he rented them out year after year—it is permitted, and according to this he wrote in the name of the Rosh that when the custom is so, it is permitted. And so wrote the Rambam in chapter 6, law 15, that any object upon which the name of the Israelite owner is called, and it is not the way of most of the people of that place to rent it out or to give it over in sharecropping—it is forbidden to rent it to a non-Jew, because he performs work on Shabbat and it is called by the name of its owner. Thus far his words. Behold it is explicit, that if only the custom of the place is to rent it out or to give it over in sharecropping—it is permitted. (And one should not ask: How did he act in the first years before it became publicized? For it can be said that then, in truth, he did not perform work on Shabbat and Yom Tov).

Our teacher, the Rema, wrote: That even in a place where it is forbidden, if the bathhouse or the oven does not belong to an Israelite, but rather he rented them from a non-Jew and then rented them back to a non-Jew—it is permitted, for the name of the Israelite is not called upon it. Thus far his words. And in truth, for this reason, it is not specifically when he rented them from a non-Jew, for the same law applies even if he purchased them; however, in the case of purchasing them, the permission only applies when the matter has not yet become established, but if the matter has become established—behold, the name of the Israelite is called upon it. And so too, if the Israelite enters this house immediately, it is forbidden, because the name of the Israelite is immediately called upon it. But in the case where he rented them—it is permitted in any event, for everyone knows that this belongs to the non-Jew and the Israelite rented them. (See Magen Avraham subsection 3, and according to what I have written it settles well, and see Eliyah Rabbah subsection 7). And so too regarding a purchase, even immediately, if he purchased it with publicity such as in the courts or the like—it is forbidden immediately, which is not the case with renting (Tosefet Shabbat subsection 3).

He further wrote: "And so too, if there is a bathhouse in a residential house, and only those of his household bathe in it, and they know that he rented it to a non-Jew—it is permitted," thus far his words. That is to say, that which they forbade to rent a bathhouse to a non-Jew is only when the bathhouse is in his courtyard, and other people besides the members of his household also bathe in it, for then those people who see that the bathhouse is heated on Shabbat will say that he heated it as the agent of the Israelite. Or even when only the members of his household bathe in it, if the bathhouse stands in the street—it is also forbidden, for everyone sees that it is heated on Shabbat and there is suspicion. But when it stands in his courtyard—not everyone sees. And if it is because whoever enters his courtyard will see—this is nothing, for it is not known to everyone that there is a bathhouse there, since none but the members of his household bathe there. And so too, if the bathhouse stands in another's domain, neither in his courtyard nor in the street—for then even if others also bathe in it, it is permitted, for it is not revealed to all that this bathhouse belongs to so-and-so; rather, the neighbors know of this, and they know that he rented it to a non-Jew. This is the opinion of our teacher, the Rema. And there are those who are stringent, that specifically when it stands in another's domain and only the members of his household bathe in it—then it is permitted, but in another manner—it is forbidden. But several great authorities agreed that one should not be stringent regarding a rabbinic prohibition (Eliyah Rabbah subsection 8 and Tosefet Shabbat subsection 4), and so it is explicitly stated in the Mordechai, chapter Kol Kitvei, that when the bathhouse is in another's domain—it is permitted, see there. (And as for what the Taz wrote, that regarding appearances—it is forbidden even in the innermost chambers, this is regarding a Torah prohibition. And as for what he wrote in the name of the Semag that this is a Torah prohibition—we have already explained that it is very grave, but who does not know that this is rabbinic? And as for what he wrote to be concerned for guests—this is not applicable to something in his house. And as for what the Magen Avraham wrote in subsection 4, that they will see smoke exiting—we have already explained that this is nothing, and they will attribute it to something else. And the Gra"z tends toward the Magen Avraham, see there, but the primary view is like our teacher, the Rema, and examine it well).

Our teacher, the Rema, wrote: That if one transgressed and rented it out in a place where it is forbidden, some say that its rent is permitted, and some say that it is forbidden, and such is the primary ruling. Thus far his words. And the great authorities agreed, that in a place where by the letter of the law it is forbidden to rent it out—its rent is forbidden, and in a place where by the letter of the law it is permitted, and the prohibition is only because of marit ayin—its rent is permitted (Beit Chadash and Magen Avraham subsection 5 and Eliyah Rabbah and the Gaon Rabbi Zalman and Tosefet Shabbat). And more will be explained regarding this with the help of Heaven in siman 245, see there.

And even in a place where it is permitted to rent out a bathhouse, a mill, an oven, and the like to a non-Jew—for instance, where he rented them year after year, or where such is the custom of the place, as has been explained—nevertheless, he shall not rent them to him on Erev Shabbat, for the reason that will be explained in siman 246. And likewise, he shall not rent to him for a month or for a year at a price of such-and-such for each day, for if so, he is taking from him the wages of the Shabbat day, and one may not earn wages on the Shabbat day in a manner where it is evident that he takes it for Shabbat, because of the decree against buying and selling. Rather, he shall rent to him at a price of such-and-such for each week, or such-and-such for each month, or such-and-such for a year, so that the Shabbat wages will be included within the other days, so that it does not appear like Shabbat wages. And Shabbat wages are forbidden even ex post facto (Prisha).